The American Psychiatric Association has depathologized kinky sex – including cross-dressing, fetishes, and BDSM – in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). Now the paraphilias are considered to be “unusual sexual interests,” while those who have sex with children or people who haven’t consented, or who deliberately cause harm to themselves or others, may be diagnosed with a Paraphilic Disorder.

“The APA has made it clear that being kinky is not a mental disorder,” says Susan Wright, Spokesperson for NCSF. “That means people no longer have to fear being diagnosed as mentally ill just because they belong to a BDSM group. We’ve already seen the impact – NCSF immediately saw a sharp rise in the success rate of child custody cases for kinky parents after the proposed DSM-5 criteria was released three years ago.”

NCSF would like to thank everyone who participated in signing our DSM Revision Petition and for telling the APA about their own stories of discrimination and persecution. NCSF also thanks every member of the APA Paraphilias Subworkgroup for responding to our concerns, and drawing a hard line between consensual adult kinky sex and those who willfully engage in nonconsensual or harmful activities.

NCSF is proud to build on the work of kink-aware professionals who have come before us, including Race Bannon and Guy Baldwin, who helped make seminal changes in the DSM-IV in 1994.

The following are some statements about the various paraphilias in the DSM-5. Although highly clinical in language, they show the APA’s intent to not demand treatment for healthy consenting adult sexual expression:

“A paraphilia is a necessary but not a sufficient condition for having a paraphilic disorder, and a paraphilia by itself does not necessarily justify or require clinical intervention.” p. 686

“In contrast, if they declare no distress, exemplified by anxiety, obsessions, guilt or shame, about these paraphilic impulses, and are not hampered by them in pursuing other personal goals, they could be ascertained as having masochistic sexual interest but should not be diagnosed with a sexual masochism disorder.” p. 694

“Many individuals who self-identify as fetishist practitioners do not necessarily report clinical impairment in association with their fetish-associated behaviors. Such individuals could be considered as having a fetish but not fetishistic disorder.” p. 701

“Clinical assessment of distress or impairment, like clinical assessment of transvestic sexual arousal, is usually dependent on the individual’s self-report.” p. 703

To support NCSF, go to www.ncsfreedom.org. NCSF relies entirely on your donations to advance the rights of consenting adults and to do advocacy like our DSM Revision Project. Please donate now!

Normal or Not? A Sexual Attraction to Objects

The DSM-5 marks this transition by attaching the term "disorder" when an unusual sexual interest crosses these boundaries. So, hypothetically, someone who simply uses shoes to masturbate or whose partner accepts his unusual interest in shoes could be diagnosed with fetishism, but not a fetishistic disorder — unless the fetish crosses the threshold in one of the ways described above.

Along the same lines, Wismeijer also suggested that accepting one's unusual sexual preferences and choosing to live in a societal niche like the BDSM community might involve huge amounts of psychological work, which could translate into positive mental health.

For example, while the NCSF firmly believes that consensual SM activity between adults is legal, there are those that have a differing opinion and will intentionally interpret the law in an unfavorable way. Therefore, it is extremely important for the SM- Leather-Fetish communities to have an understanding of the laws that may affect us.

The National Coalition for Sexual Freedom has been fighting for your rights for the past 14 years, and we are changing the way society views kinky people.

NCSF has taken the lead in two vital projects:

Our DSM Revision Project has successfully lobbied the American Psychiatric Association, resulting in their proposal to depathologize BDSM in the next Diagnostic & Statistics Manual.

NCSF also took over leadership in the nationwide Consent Counts project, working to decriminalize BDSM and create a database of relevant state laws.

BDSM activity, even where clearly consensual, can be and frequently is prosecuted under state criminal laws dealing with assault, aggravated assault, sexual assault or sexual abuse. Such criminal prosecution can arise in various circumstances, including:

The BDSM “scene” turns out to be more intense or painful or harmful than the submissive participant anticipated, and she or he goes to the police.

Injury is caused that is sufficiently serious or sufficiently visible that it is brought to the attention of the police by an observer, by hospital personnel or by a friend or relative of the submissive participant.

The police raid a BDSM event and observe conduct that they interpret as unlawful.

A BDSM relationship ends, leaving the submissive partner with bad feelings, and he or she complains to the police about assault or abuse.

Someone with a grudge against a participant in the BDSM scene or relationship makes a complaint to the police.

Or pictures, videos, emails, film or sound recordings of BDSM conduct somehow come into the hands of the police.

The Critical Issue: Consent

The nature of the criminal offense here is that one person causes physical harm—injury and/or intense pain—to another person. It is important to understand that the law sees this as causing harm, not engaging in mutually beneficial conduct. This means that the law treats BDSM as violence, not as sex. That explains why the issue of consent is different in BDSM cases than in rape cases. In a rape case, the sex act is not viewed as criminal unless it can be shown that one party did not consent. In a BDSM case, however, the causing of physical harm is, in and of itself, criminal. The question is whether and to what extent the law will allow such criminal conduct to be excused by the fact that the injured participant consented to have harm done to her or him.

As long as courts and lawmakers put BDSM practice in the same category as criminal assault—which is a view that the “Consent Counts” campaign will try to change—it is not surprising that they will be reluctant to allow consent as a defense to anything more than minor harm or injury. And sure enough, that is the pattern shown by the court cases, even where a court is interpreting a statute that seems on its face to allow consent to be a defense in any case where there is “serious” injury. Moreover, the courts’ reluctance to allow consent as a defense is undoubtedly influenced by the general public’s misunderstanding of and adverse reaction to BDSM as a “perverse” or even “immoral” practice.

The State Statutes—Consent as a Defense

The definitions of assault, abuse and other such crimes involving infliction of physical harm, as well as the provisions (if any) dealing with consent as a defense to such criminal charges, are matters of individual states’ laws. There is no federal law in this area. The laws vary from state to state, and many state laws on assault do not mention consent as a defense.

There are, however, a number of state assault statutes that do provide for consent as a defense. Such statutes invariably place limits on the consent defense, both in terms of the degree of harm and in terms of the way in which consent is given and the types of people who cannot legally give their consent. Many such laws closely follow the language of the Model Penal Code’s (MPC) section on consent:

§ 2.11. Consent.

(1) In General. The consent of the victim to conduct charged to constitute an offense or to the result thereof is a defense if such consent negatives an element of the offense or precludes the infliction of the harm or evil sought to be prevented by the law defining the offense.

(2) Consent to Bodily Injury. When conduct is charged to constitute an offense because it causes or threatens bodily injury, consent to such conduct or to the infliction of such injury is a defense if:

(a) the bodily injury consented to or threatened by the conduct consented to is not serious; or

(b) the conduct and the injury are reasonably foreseeable hazards of joint participation in a lawful athletic contest or competitive sport or other concerted activity not forbidden by law; or

(c) the consent establishes a justification for the conduct under Article 3 of the Code.

(3) Ineffective Consent. Unless otherwise provided by the Code or by the law defining the offense, assent does not constitute consent if:

(a) it is given by a person who is legally incompetent to authorize the conduct charged to constitute the offense; or

(b) it is given by a person who by reason of youth, mental disease or defect or intoxication is manifestly unable or known by the actor to be unable to make a reasonable judgment as to the nature or harmfulness of the conduct charged to constitute the offense; or

(c) it is given by a person whose improvident consent is sought to be prevented by the law defining the offense; or

(d) it is induced by force, duress or deception of a kind sought to be prevented by the law defining the offense.

Model Penal Code § 2.11

For our purposes the key provision in section 2.11(2)(a), which allows consent as a defense to the infliction of bodily injury where the “injury…consented to is not serious”. Thus the question that courts must decide in any given case is what is meant by “serious” injury. And on this point, the MPC offers in Section 210.0 (3) a definition that, if courts would only apply it literally, is quite helpful in the BDSM context:

Section 210.0 Definitions…

3) ”serious bodily injury” means bodily injury which creates a substantial risk of death or which causes serous, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.

Read literally, this would allow consent as a defense to most forms of BDSM practices. Breath control and certain other play might be seen by a court as creating “a substantial risk of death”. And scarification and some other forms of “extreme” or “heavy” scenes might be found to cause “serious, permanent disfigurement, or protracted loss or impairment of the function of {a} bodily member or organ.” But a literal application of the MPC standard would permit consent as a defense in most assault or abuse prosecutions based on BDSM practices.

The problem is that the courts—not just some courts; all courts—consistently classify as “serious” almost any injury, no matter how slight, and even in some cases interpret the causing of significant pain, even with no physical injury, as “serious injury” to which consent cannot be given.

The Cases—Courts Refuse To Accept Consent as a Defense

To date, there is not a single appellate court decision anywhere in this country that has accepted consent as a defense in an assault or abuse prosecution arising from BDSM conduct. The following overview, from Consent to Harm by Vera Bergelson, 28 PaceLaw Review 683, at p.691, is a good summary of the case law:

Since any harmful act that does not fit into the “athletic” or “medical” exception is, by definition, criminal, unless the inflicted injury is not serious, assessment of the seriousness of the victim’s injury determines the outcome of many cases involving consensual harm. A typical penal statute classifies bodily injury as serious if it “creates a substantial risk of death or causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” Pursuant to this definition, any short-term, non-life-threatening injury should not be deemed “serious.” Yet, as the MPC acknowledges, the assessment of the seriousness of harm is often affected by judges’ “moral judgments about the iniquity of the conduct.” Courts tend to inflate the risk and harmfulness of an activity they want to denounce. For example, any injury caused during a sadomasochistic encounter has been consistently classified as serious.

28 Pace Law Review 683, 691
An early, and typically bad, example of a pure “consent is no defense” ruling is People v Samuels, a 1967 California decision. In that case, Martin Samuels was convicted of assault based on his conduct in a film of an apparently consensual BDSM scene. The court not only rejected the consent defense, but also appeared to hold the view that any such consent would be “some form of mental aberration”:

Even if it be assumed that the victim in the ‘vertical’ film did in fact suffer from some form of mental aberration which compelled him to submit to a beating which was so severe as to constitute an aggravated assault, defendant's conduct in inflicting that beating was no less violative of a penal statute obviously designed to prohibit one human being from severely or mortally injuring another.

People v. Samuels 250 Cal.App.2d 501, 514, 58 Cal.Rptr. 439, 447 (Cal.App. 1967)
The Samuels decision was cited as recently as 2006, in People v Febrissy. In that case, the defendant’s lawyer sought to invoke the doctrine enunciated by the Supreme Court in Lawrence v. Texas, which held (in a sodomy prosecution) that, absent a compelling societal interest (and moral disapproval is not such an interest), the government cannot make private consensual sexual activity a crime. That argument was rejected.

An argument based on Lawrence v. Texas was also rejected in the Nebraska case of State v. Van, 268 Neb.814 (2004). Van was convicted of first-degree assault on the basis of an extended imprisonment and extremely intense BDSM/torture of a gay male submissive. The submissive initially consented to practices that were quite intense, but the evidence was in conflict as to whether he later withdrew that consent. On appeal, defendant Van argued that this was a case of “two adults who, with complete and mutual consent, engaged in sexual practices common to their homosexual, BDSM lifestyle” and as such was protected under Lawrence v. Texas.

Rejecting that argument, the court made three points. First, it noted that the Lawrence opinion contained a phrase that its doctrine only applies “absent injury to a person”. Second, the court emphasized that the evidence on the issue of consent was not clear-cut. Finally, and most fundamentally, the court held—citing the other decisions discussed in this paper—that consent is not a defense to a charge of assault:

Our statutes defining first and second degree assault include no reference to consent…This court has held that “all attempts to do physical violence which amount to a statutory assault are unlawful and a breach of the peace, and a person cannot consent to an unlawful assault”.

In most BDSM assault cases, the testimony of a complaining witness (the injured person) is central to the case, and often there is conflict on the issue of consent between the defendant and the complaining witness. However, even where both participants agree that the acts in question were consensual, the courts have held that consent cannot be a defense. Thus, in Commonwealth v. Appleby, a 1980 Massachusetts case, the court said:

“Grimm’s consent to assault and battery upon him by Appleby by means of a dangerous weapon cannot absolve Appleby of the crime…”Commonwealth v. Appleby, 380 Mass.296, 311, 402N.E.2d 1051,1061 (Mass. 1980).

In Iowa v. Collier, there were wildly differing accounts given of a BDSM incident, but the judge refused to let the jury consider the question of consent. The Appellate Court upheld the conviction and ruled that consent was not a defense. Significantly, the Iowa law on assault was in most ways similar to the Model Penal Code.

Provided, that where the person doing any of the above enumerated acts, and such other person, are voluntary participants in a sport, social or other activity, not in itself criminal, and such act is a reasonably foreseeable incident of such sport or activity, and does not create an unreasonable risk of serious injury or breach of the peace, the act shall not be an assault.

I.C.A. § 708.1
The court’s moralistic tone in rejecting the consent defense is a good illustration of the type of thinking that seems to underly most judges’ handling of BDSM assault cases:

The foregoing discussion compels us to conclude that, in the present case, the legislature did not intend sadomasochistic activity to be a "sport, social or other activity" under section 708.1. We are hesitant to give a precise definition of this term and believe it is more appropriate that its meaning be interpreted on a case by case basis. However, it is obvious to this court that the legislature did not intend the term to include an activity which has been repeatedly disapproved by other jurisdictions and considered to be in conflict with the general moral principles of our society. In fact, the statutory provision in question specifically excludes activities which would "create an unreasonable risk of serious injury." There can be little doubt that the sadomasochistic activities involved in this case expose persons to the very type of injury deemed unacceptable by the legislature. Were we to follow defendant's broad interpretation of "social activity," street fighting, barroom brawls and child molestation could be deemed acceptable social behavior, since such conduct is considered acceptable by some segment of society.

State v. Collier 372 N.W.2d 303, 307 (Iowa App.,1985)
People v. Jovanovic was a New York case involving an intense scene between a man and a woman who had previously engaged in extensive Internet discussion of their BDSM interests. The scene apparently went bad, and the woman went to the police. Mr. Jovanovic was tried and convicted of assault, sexual assault and kidnapping. The Court of Appeals, although it reversed the convictions on evidentiary grounds, very explicitly stated in a footnote that consent, while available as a defense to the charges of kidnapping and sexual assault, was irrelevant to the assault charge:

There is no available defense of consent on a charge of assault under Penal Law §§ 120.00[1] and 120.05[2] (contrast, Penal Law § 120.05[5] [where lack of consent is an element]). Indeed, while a meaningful distinction can be made between an ordinary violent beating and violence in which both parties voluntarily participate for their own sexual gratification, nevertheless, just as a person cannot consent to his or her own murder (see, People v. Duffy, 79 N.Y.2d 611, 584 N.Y.S.2d 739, 595 N.E.2d 814), as a matter of public policy, a person cannot avoid criminal responsibility for an assault that causes injury or carries a risk of serious harm, even if the victim asked for or consented to the act (see, e.g., State v. Brown, 154 N.J.Super. 511, 512, 381 A.2d 1231, 1232; People v. Samuels, 250 Cal.App.2d 501, 513-514, 58 Cal.Rptr. 439, 447, cert. denied, 390 U.S. 1024, 88 S.Ct. 1404, 20 L.Ed.2d 281; Commonwealth v. Appleby, 380 Mass. 296, 402 N.E.2d 1051;Iowa v. Collier, 372 N.W.2d 303).

It is important to note that the Jovanovic court cited the Samuels, Appleby and Collier decisions, confirming that the prevailing view is that there is a settled precedent, established by a series of decisions in state courts across the country, that consent is no defense to a charge of assault arising from BDSM practices.

A Few Rays of Hope

Despite the consistent refusal of state courts to recognize consent as a defense to BDSM-based assault prosecutions, there are reasons to hope that a long-term, carefully planned Consent Counts campaign can reform this area of the law.

For one thing, the U.S. Supreme Court has created a doctrine of privacy that, at least in some areas of sexual behavior, now insulates consenting couples from criminal prosecution. While the doctrine ofLawrence v. Texas (mentioned earlier in this paper) has not been applied in the BDSM context, the principle of privacy is a powerful one that works in our favor.

The Model Penal Code’s quite favorable definition of “serious injury” also has the potential for use in changing the trend of court decisions. At the very least, it gives us the starting point to argue that the consequences of BDSM should be treated no differently from other injury-causing activities.

Finally, while no decision has yet explicitly accepted the defense of consent in a BDSM-based assault prosecution, at least two courts have reversed convictions on evidentiary grounds in ways that suggest that the consent of the “victim” may have played a role in their thinking. Thus, while the Jovanovic footnote states that consent is no defense to assault charges, the court’s reversal of the conviction was based on failure to permit the use of evidence of consent, and the court reversed not only the sexual assault and kidnapping convictions (for which absence of consent is an element of the offense), but also the assault conviction.

And, a recent Rhode Island decision, State v. Gaspar, reversed a BDSM assault conviction on evidentiary grounds that related in part to the issue of consent. While the court did not discuss the issue of consent with any specificity, the decision contains the following assessment of the central issue in the case:

The evidence adduced at the trial of this criminal case included testimony concerning a multitude of unconventional sexual practices but ultimately presented only one question for the jury's determination: did the events of the night in question constitute a mutually consensual sexual encounter between two adults or a brutal sexual assault?

State v. Gaspar 982 A.2d 140, 141 (R.I.,2009)
This is, in fact, the core issue we face in the Consent Counts campaign: Can the courts and society be brought to understand what we in the BDSM community know to be the case—namely, that what we do “constitutes a mutually consensual sexual encounter between adults” and is not “a brutal sexual assault”? If we can get that point across, then perhaps we can persuade courts and legislatures that injuries caused by BDSM should be prosecuted only when not consensual or when the injury is so severe (the Model Penal Code definition) that it constitutes an abuse of BDSM practices.

Other Legal Models for BDSM Cases

Prosecutions that grow out of BDSM incidents are generally brought under the assault statutes. This is one of the reasons, perhaps the major reason, that courts rebel against allowing the defense of consent. The essence of the crime of assault is the attack on one person by another. The concept of consenting to such an attack is, to some extent, counter-intuitive.

Some cases arising from BDSM incidents, however, have been prosecuted under the criminal charge of battery. Battery, unlike assault, does not necessarily involve an attack by one person against another. The crime of battery is injurious touching or striking of one person by another. Thus, in battery cases, there is an issue as to the context in which the injurious touching or striking occurred. As the Court of Appeals of Indiana stated in Helton v. State, 624N.E.2d499(1993) at 514, n.22:

Consent is connected with the harm or evil sought to be prevented; therefore, if the victim consents to the defendant’s touching, that touching is not rude or insolent and should not be considered unlawful unless it meets one of the exceptions to the general rule.

The exceptions to the general rule (in Indiana) that consent is a defense to battery, and specifically is a defense available in cases “involving sexual overtones”, are as follows:

(1) Where the defendant goes beyond acts consented to;

(2) Where it is against public policy to permit the conduct or resulting harm even though it is consented to, as, as where there are no sexual overtones and the battery is a severe one which involves a breach of the public peace, as well as, an invasion of the victim’s physical security;

(3) Where consent is ineffective as where it is obtained by fraud or from one lacking legal capacity to consent;

The concept here is that touching or striking, unlike an attack, is not inherently criminal. (Similarly, the conduct underlying the offense of rape - sexual intercourse - is mutually pleasurable conduct when consensual, and becomes criminal only in the absence of consent.) Thus, when that conduct is consensual, even where some injury is caused, it is more palatable to find that such consent prevents the conduct from being a criminal offense.

Our communities certainly do not view BDSM as an attack by one person on another. Rather, we see BDSM as mutually pleasurable conduct, the details of which are negotiated in advance and generally subject to agreed safe words and other protections. If we could persuade courts to adopt that view of BDSM, we might also persuade them that such cases are not appropriately prosecuted as assault, but rather as battery. Thus consent would normally be a defense—as is true in battery cases with “sexual overtones”—subject to the exceptions listed above.

This would not necessarily eliminate the moralistically motivated tendency of courts to seek reasons not to allow consent as a defense, however. In Govan v. State, 913 N.E.2d.237 (Indiana Appeals Court 2009), the defendant (Govan) was convicted of both assault and battery, based on a BDSM incident in which he “punished” the victim (A.H.) by branding her with a hot knife and whipping her with an electrical extension cord. The appellate court rejected Govan’s argument that A.H.’s consent was a defense to his conduct. First, it ruled that consent could not be a defense to the assault charge. Second, although the court acknowledged that consent was a valid defense in a battery case having “sexual overtones”, it found that the use by Govan of a knife invalidated the defense:

Turning to the case at hand it is undisputed that it involves sexual overtones. Notwithstanding those overtones, A.H.’s consent is not a defense to the crime because Govan’s actions involved a deadly weapon,...namely a knife, and therefore A.H.’s consent is not available as a defense to battery. Govan, 913 N.E.2d at 242-243.

In summary, one approach that could increase our communities’ access to a consent defense would be to persuade the courts that BDSM incidents should be prosecuted, if at all, under battery statues rather than as assault. Even in battery cases, however, we need to find ways to deal with the moralistic prejudices that lead courts to stretch for reasons to reject consent as a defense.

The DSM Criteria—Changing Psychiatry’s View

It is important to note that, in parallel with the Consent Counts project, the National Coalition for Sexual Freedom is working to change the way BDSM is understood by the psychiatric profession whose views influence the attitudes of the public and the courts toward our communities. Until 1994, BDSM was classified in the American Psychiatric Association’s Diagnostic and Statistical Manual (the “DSM”) as a form of mental illness. With the adoption of DSM IV in 1994, this classification was modified so that today BDSM—along with cross-dressing and fetishism—is a mental illness if it is determined that you are suffering “clinically significant distress—i.e., your BDSM behaviors: 1) are obligatory, 2) result in sexual dysfunction, 3) require participation of non-consenting individuals, 4) lead to legal complications, or 5) interfere in social relationships.

The Association is currently engaged in a new revision, referred to as DSM V. NCSF is actively involved in this process, working to further reduce, if not remove entirely, the stigma attached to BDSM. Importantly, this new revision may result in a distinction between consensual and non-consensual BDSM. This, of course, would be consistent with and would give impetus to our political and social advocacy in the Consent Counts project.

Copyright, NCSF, 2010. NCSF grants permission to reproduce this document, provided it is reproduced in its entirety and distributed free of charge.

NCSF was asked by the DSM Paraphilias subworkgroup to respond to their proposed changes to the DSM's consensual paraphilias. This is our letter to the editor of the Archives of Sexual Behavior that was published on July 15, 2010.

[Letter to the editor]

Archives of Sexual Behavior

Archives of Sexual BehaviorJuly 16, 2010DOI: 10.1007/s10508-010-9651-yThe final publication is available at www.springerlink.com

Corresponding author:
Susan Wright
National Coalition for Sexual Freedom
410 Guilford Ave, #127
Baltimore, MD 21202
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The DSM-V Paraphilias Subworkgroup's suggested revision to differentiate between paraphilias and Paraphilic Disorders appears to be a step forward in depathologizing unusual sexual interests. Paraphilia diagnoses are regularly misused in criminal and civil proceedings as an indication that individuals cannot control their behavior; these individuals turn for assistance to the National Coalition for Sexual Freedom (NCSF), a national advocacy organization that advances the rights of, and advocates for consenting adults in the BDSM-leather-fetish, swing, and polyamory communities.

One recent child custody case referred to NCSF illustrates the common misunderstanding that legal and social service professionals have with the DSM-IV-TR, and is the first documented reaction to the proposal to differentiate between paraphilias and Paraphilic Disorders. The children were removed in July 2009 while psychological evaluations were performed on the mother and the children, which concluded there was no mental illness.[1} However the case worker with the Department of Social Services Children's Division in the Midwestern state where this case occurred sent the following January 21, 2010 letter to the mother’s court appointed psychologist: (DSS, 2010):

"With regards to [mother's] alternative lifestyle; can she separate this from her parenting? There has been some questions arise from other team members regarding her sexual sadism. These are as follows:

"We were made aware at the last FST meeting that while all parties involved have seen the information provided regarding [mother's] blog and website, no action has been taken to determine how it affects the children or is factored into the stated case goal of reunification with [mother]. The following information is relevant:

A. Sexual Sadism is considered a form of paraphilia in accordance with the DSM-IV-TR.

B. [Mother] admitted in court on March 9, 2009 that she was a "domme" – slang for a female sexual sadist.

C. Sexual Sadism involves inflicting pain and suffering on another individual in order to achieve sexual arousal." …

"Sexual sadism on the web has the following information: 'The essential feature of sexual sadism is a feeling of sexual excitement resulting from administering pain, suffering or humiliation on another person. In extreme cases, sexual sadism can lead to serious injury or death for the other person. According to the DSM these catastrophic results are more likely when the paraphilia is diagnosed as severe, and when it is associated with antisocial personality disorder.[2} They may experience distressed or impaired functioning because of the sadistic behaviors or fantasies. This distress and impairment may be due to the fact that the partner is not consenting. The diagnosis of sexual sadism is complicated by several factors, beginning with the fact that most persons with the disorder do not voluntarily enter therapy.'"

"[Mother] indicated she gave up this lifestyle in March. However the blog and stories that were found were posted to her website in May. There are concerns that she is still a moderator of the [BDSM] yahoo group. I have attached pages from her website in hopes that you can explore with [mother] her current involvement with this alternative lifestyle."

The CPS letter concludes with the recommendation that: "Even though [mother] is complying with attendance in therapy, we feel the above issues need to be explored and addressed."

At the final permanency hearing in February, 2010 the mother's lawyer submitted to the judge the proposed revisions for the DSM-V to separate the paraphilias from Paraphilic Disorders, resulting in a court determination to re-evaluate her entire case. The judge specifically chastised the Department of Social Services for not being aware of the proposed changes for the DSM-V. Based on the proposed revisions, in March the mother was awarded custody of three of the children, with the father retaining custody of one child in order to take advantage of his health care coverage.

As this example shows, when individuals who practice BDSM are brought to the attention of authorities, they are regularly misdiagnosed with a mental disorder. In 2009, NCSF was asked for help by 132 people regarding child custody/divorce issues directly involving their alternative sexual practices (NCSF, 2009). The year before, a total of 157 individuals contacted NCSF for help with child custody/divorce issues (NCSF, 2008). In total, almost 500 people each year request help from NCSF because of discrimination or persecution due to their alternative sexual practices.

Therefore the implications of "ascertaining a paraphilia" and "diagnosing a paraphilic disorder" are critical to depathologizing consensual paraphilias. I am concerned that if sexual sadism receives its own diagnosis code separate from Sexual Sadism Disorder, social services and legal professions will continue to think that anyone who practices consensual sexual sadism (or sexual masochism, fetishism and transvestic fetishism) therefore has a mental disorder.

The consensual paraphilias should be mentioned as the healthy comparison to a Paraphilic Disorder, much like various sexual behaviors are referred to in the proposed Hypersexual Disorder. Cybersex and masturbation don't have separate diagnosis codes in the DSM, and it is equally erroneous to assign separate codes for the paraphilias when they are not mental disorders or of clinical concern. For the same reason, the consensual paraphilias shouldn't be listed among the V-Codes.

Separating sexual behaviors (paraphilias) from the mental disorders (Paraphilic Disorders) is the first step in depathologizing consensual alternative sex. The second step is defining what exactly constitutes clinically significant distress. NCSF often consults with individuals who suffer distress and impairment in their social and occupational lives (ie. interpersonal difficulties) because their desires conflict with current societal standards. These standards stem in a large part from the DSM itself: pathologizing unusual sexual interests has led to increased discrimination and discouraged individuals from seeking treatment for physical and mental health problems (Wright, 2008).

A distinction must be made in the DSM-V between distress imposed by societal stigma, and distress that is generated internally. As seen in the above referenced child custody case, mental health professionals are not the only ones who consult the DSM. When attorneys, judges, and social workers read the diagnoses in the DSM, they see "distressed or impaired" as the determiner of mental illness. Without a comprehensible definition, they look at the individual who is on trial or in a child custody battle, and that individual certainly appears distressed. They even speculate that if the individual gave up their BDSM practices, then their life wouldn't be in disarray, so clearly they must be suffering a mental disorder because their sexual behaviors are obligatory or "obsessive" (DSS, 2010).

Therefore the current list by which distress and impairment are diagnosed must be rejected: 1) are obligatory, 2) result in sexual dysfunction, 3) require participation of nonconsenting individuals, 4) lead to legal complications, or 5) interfere in social relationships. Legal complications and interpersonal difficulties are common consequences of the stigma and discrimination against BDSM practices. In the Second National Survey of Violence & Discrimination Against Sexual Minorities, a total of 1,146 (37.5%) of the respondents indicated that they had either been discriminated against or had experienced some form of harassment or violence (Wright, 2008). As a result, 60% of the 3,000 respondents are not "out" about their BDSM interests; the stress of being closeted and/or coming out promotes distress and impairment in these individuals, similar to that experienced by homosexuals.

In addition, once a Paraphilic Disorder is diagnosed, can it ever be in remission? If so, what are the mechanisms for determining that? If the distress and impairment are resolved, does the individual go back to the ascertainment category? As of now, once a mental disorder is diagnosed, it appears to apply for the lifetime of the individual.

Finally, it must be made clear that Paraphilic Disorders are extremely rare. In particular, the descriptive text for Sexual Sadism Disorder needs to clearly state that it is limited to forensic populations, and, as Krueger (2009) states, "virtually all of the published papers using DSM criteria for Sexual Sadism have been done on studies of forensic populations." This will help prevent the conflation of those who practice consensual paraphilias with those who have a Paraphilic Disorder.

[1] All names and locations have been removed to protect the identity of those involved.

[2] Bolded in original letter despite there being no evidence the mother has antisocial personality disorder.

NCSF hosts the largest known resource online for locating a Kink Aware Professional (KAP). Whether you need legal assistance, a CPA for your kink-related business, or just an understanding therapist who won't blame your kink interests for all of your life challenges, the KAP is the place to find them.

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If you practice BDSM in fully consensual ways, you may still be criminally prosecuted for assault under many laws throughout the U.S. The BDSM-Leather-Fetish communities have focused heavily for years on defining “safe, sane and consensual BDSM practices” for practitioners as well as to help the broader public better understand what it is that we do. It was, after all, only in 1994 that the DSM criteria of the American Psychiatric Association changed their categorization of sadomasochism, paving the path for us to do more effective social, legal and political change. Until 1994, BDSM was defined automatically as a mental illness. Prior to 1994, it was difficult to organize effectively to protect and advance our rights as BDSM practitioners. This categorization and long-term societal view of BDSM as a mental illness resulted in severe consequences for many practitioners over the years—loss of child custody and jobs as well as criminal prosecutions. Fortunately for all of us, NCSF was formed in 1997 to work on these issues and to protect and advance our rights.

Although things have certainly improved for us over the years, we still have significant legal, political and societal issues facing us. The majority of us are not “out of the closet”, still fearing the very real threat of being prosecuted or losing our jobs or families. BDSM is still prosecuted criminally as assault, and the legal precedents related to consensual BDSM assault prosecutions are not in our favor. Many of the laws intended to protect victims of domestic violence and rape need to be modified in their application to consensual BDSM activities. The DSM criterion still needs further reform—it is still used against us, and we can still be defined as mentally ill for what it is that we do. And, members of our communities still routinely face ongoing issues of divorce, child custody, job discrimination and even criminal charges.

NCSF has two major national projects aimed at protecting and advancing the rights of the BDSM-Leather-Fetish communities. First, NCSF has taken charge of the “Consent Counts” initiative that was launched in 2006 at a Leather Leadership Roundtable as the single most important national priority of the BDSM-Leather-Fetish communities. Our goal: to decriminalize consensual BDSM throughout the United States by ensuring that consent will be recognized as a defense to criminal charges brought under assault laws and other statutes. The Consent Counts project is a nationwide education and activism program that includes a comprehensive analysis of current laws and court decisions, the development of legal arguments for changing the laws, participating in court cases, and ultimately, through lobbying, education and grass-roots activism, changing state laws and the way the public and the courts view BDSM.

The other important advocacy project is NCSF’s work to change the DSM criterion so that consensual BDSM will be categorized, not as a mental pathology, but rather as a normal variant. In this effort, we are coordinating research and advocacy and working with recognized experts in the field.

We need your help and support to be successful. You can make a difference. Get involved. Visit www.ncsfreedom.org.

Copyright, 2010, NCSF. NCSF grants permission for this article to be reproduced and distributed, provided it is distributed in its entirety and free of charge.

In 2007, NCSF organized a leather leadership round table at the
Creating Change conference to discuss the goals of the
BDSM-leather-fetish communities. The number one priority was determined
to be the decriminalization of BDSM.

A subsequent town hall meeting at
LLC was held to further discuss this goal and to establish an outline
for a working plan for this 10-15 year project. This is a community-wide
project with participation by national groups as well as activists to
help determine the plan to accomplish this goal.

Earlier this year, it
was determined that it would be in the best interest of this project forNCSF to take a leadership role. Since NCSF had already established the
DSM project as a major area of focus, it made sense to also add the CONSENT COUNTS project as a major focus.

This e-mail address is being protected from spambots. You need JavaScript enabled to view it
, former Executive
Director of NCSF and long-time sexual freedom activist, recently
re-joined NCSF as the CONSENT COUNTS project director.

About Incident Reporting & Response

The NCSF Incident Reporting & Response (IRR) program provides assistance to individuals and groups within the alternative sexual expression communities who become victimized because of SM, leather, fetish, or swing practices.

Program Goals: NCSF's Incident Reporting & Response was created to provide assistance to individuals and groups within the BDSM, swinging and poly communities who are experiencing discrimination or needs assistance because of their interests and activities.